Supreme Court Commission to Recommend ... Nothing

Members see risks to expansion and term limits
By Bob Cronin,  Newser Staff
Posted Oct 16, 2021 5:50 PM CDT
Biden's Supreme Court Panel Is Conflicted on Expansion
The Supreme Court is seen on Oct. 4, the first day of its new term.   (AP Photo/J. Scott Applewhite)

(Newser) – The first word from President Biden's commission charged with exploring changes to the Supreme Court was mostly about what the panel hasn't done. "The Commission did not attempt to discern whether the Court is beset by a crisis of legitimacy today, nor do we take a position on whether the Court’s independence is at risk or whether it has become too anti-democratic," said a draft document released before a meeting Friday. The panel was asked to consider specific changes, but its final report, to be presented to Biden in mid-November, won't include actionable recommendations, CNN reports.

That was more or less the plan, but the cautious, hesitant approach evident in the drafts still irritated people, mostly Democrats. "This was not even close to being worth the wait," said Brian Fallon of Demand Justice, who criticized the "the paralysis-by-analysis" approach, per the New York Times. On one major proposal, adding members to the court, the drafts show members seem to agree that would be legal but not on whether it "would be wise," per MSNBC. The documents cited polls showing the idea is unpopular. The commission is focusing too much on the politics of expansion and not enough on potential benefits, said Sherrilyn Ifill of the NAACP.

Many Republicans don't want to see the panel doing anything more, saying expansion would upend norms and already has received too much attention, per the Washington Post. "Far-left progressives are clearly trying to expand their political power under the guise of 'court reform,'" said Kelly Shackelford of First Liberty Institute. Two conservatives quit Friday, leaving 36 members on the panel. Although the commission sidestepped the legitimacy question, a Gallup Poll in September found the Supreme Court's approval rating down to 40%.

There's more support for imposing 18-year term limits on justices. But members aren't sure how that could be done. It might take a constitutional amendment, or maybe just a statute. Some members don't want to do anything that could "encounter so many constitutional problems." Biden threw cold water on that idea anyway on Friday night when he was asked if he supports term limits. "No" was his answer. Laurence Tribe, a constitutional law expert on the panel, isn't sure about term limits, either. But he worries about the effects of rejecting every potential improvement because of possible risks. "Many people, and I include myself in this, believe we are indeed in a ‘break-the-glass' moment," he said. (Read more US Supreme Court stories.)

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